No. 40 W.D. Appeal Docket 1982, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 499 C.D. 1981, reversing the Order of the Common Pleas Court of Allegheny County, Civil Division, at No. SA 1239 of 1980.
D.R. Pellegrini, City Sol., Gretchen G. Donaldson, Pittsburgh, for appellant.
E.J. Strassburger, Pittsburgh, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., files a dissenting opinion in which Larsen, J., joins. Flaherty, J., files a separate dissenting opinion.
This case arose from the denial by the Zoning Board of Adjustment of the City of Pittsburgh of appellee's request to occupy the property she leases in Pittsburgh as a boarding house. That decision, as affirmed by the Court of Common Pleas of Allegheny County, was based upon the fact that appellee's property is located in an R-4 residential district where under § 937.02 of the Pittsburgh Code boarding homes are not permitted. The Commonwealth Court,*fn1 however, reasoned that boarding homes could not be rationally excluded from the R-4 residential districts when rooming houses were allowed in such districts. Therefore, that court held § 937.02 of the Pittsburgh Code to be unconstitutional as violative of the equal protection of the law. We now reverse.
Initially, we note that zoning classifications are largely within the judgment of the legislative body and the exercise of that judgment will not be interfered with by the courts except where it is obvious that the classification has no substantial relationship to public health, safety, morals or general welfare. National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965); Glorioso Appeal, 413 Pa. 194, 196 A.2d 668 (1964). In addition, when the constitutionality of a zoning ordinance is attacked, there is a presumption that the ordinance is valid and that the municipal legislative body acted with the purpose of serving the public welfare. The burden is on the challenger to rebut this presumption and prove that the ordinance in question is clearly unconstitutional. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975); Bilbar Page 227} Construction Co. v. Board of Adjustment, 393 Pa. 62, 141 A.2d 851 (1958).
In the instant case, it is clear that the legislative body of the City of Pittsburgh has classified rooming and boarding houses as different entities for zoning purposes. Section 903.02(b) of the Pittsburgh Code provides,
"'Boarding house' means a building or portion thereof, other than a hotel, containing not more than one dwelling unit, if any, where meals and lodging are provided for persons not residing in the dwelling unit." (Emphasis added)
And, Section 903.02(r) notes,
"'Rooming house' means a building or portion thereof other than an apartment hotel or a hotel, containing not more than one dwelling unit, if any, where lodging is provided without meals for persons ...